Lower Macungie takes hit in 'unusual' court ruling

William Deibert is living proof that fighting city hall isn't always the fruitless undertaking it seems. That is, the 85-year-old says, if you have deep pockets and the ability to withstand a good bit of heartache.

The Lower Macungie man and his family recently scored a surprising victory over the township by virtue of a court opinion that some are calling a legal rarity.

Lehigh County Judge J. Brian Johnson, following years of legal back-and-forth between Deibert's family and Lower Macungie over water runoff from nearby housing developments, ruled that the township is to blame for the ponds and streams that form on the Deibert property during storms. In scolding the township for being "negligent" and "unlawful," he ordered it to fix a problem.

"Somebody has to stand up and say this nonsense has to stop," said Deibert a retired General Motors dealer. "Nobody should have to go through this. Not again. Ever. Ever. Ever."

Johnson ruled last month that the township was negligent in approving storm-water management plans for a pair of developments near Hidden Valley, Minesite and East Texas roads near the Northeast Extension of the Pennsylvania Turnpike.

He said the township violated its own subdivision and land development ordinance, as well as the state's Storm Water Management Act and the Little Lehigh Creek watershed management.

The judge exonerated the developers, Gianni Homes and Corrado Homes, saying they did everything the township required.

Although Johnson ruled in favor of the Deiberts on only four of 32 claims, the result could be damaging for Lower Macungie, which is faced with making improvements estimated at $250,000 to $400,000. That cost could be paid by the township's insurance carrier, which is covering the township's legal defense.

Peter Nelson, the township's solicitor, called the ruling "highly unusual."

"It's not our [development] plan. It's not our design. It's not our land and it's not our work," Nelson said. "The township had nothing to do with any of this except for reviewing and approving these plans."

John D. Kearney, the Philadelphia attorney defending the township and the insurance carrier, filed court papers after the ruling, claiming that Johnson erred in not finding the township immune from the suit. He argues that municipalities are generally protected from that liability by the Political Subdivision Tort Claims Act.

Deibert isn't gloating over the outcome. He just wants the water problem remedied so he can live a more peaceful retirement on his 87 acres off East Texas Road. He's also hoping to eventually recoup his legal costs from the township.

Deibert said he, his wife Alma, his daughter Pamela Borowski and son-in-law Michael Borowski have been living with "mental torment" for more than five years.

He wouldn't divulge the cost of hiring an attorney and multiple experts, saying only that it has been a "tremendous" price tag. He said the ordeal has negatively affected his wife's health. "She broke down and cried every time she had to sign a check," Deibert said.

Deibert said he gets emotional about the damage to his property that he's lived on most of his life because it was originally owned by his great-grandfather.

The problems began, Deibert said, after storm-water management systems were installed within the Corrado Homes and Hidden Valley Meadows developments.

Before the development, runoff from roughly 15 acres of land now occupied by those developments drained onto the Deibert property. [William and Alma Deibert own about 87 acres; the Borowskis own less than 2.] After construction, runoff from an additional 33 acres of land drained onto the Deibert land, Johnson found.

During the seven-day trial, Michael Borowski showed video of how runoff created a pond on his property and a stream of water along his property and the Deibert property. The family also claimed that at least three sinkholes on the property were caused by the water deluge.

Johnson found the Deibert land will now face the volume of water produced by a 100-year storm every 10 years.